Amar Nath vs Joginder Lal and another

J.V. Gupta, J.—This petition is directed against the order of Sub-Judge 1st Class, Samrala, dated 20th July, 1981.

The brief facts of the case are that Amar Nath petitioner was the owner of the house in dispute He mortgaged the same with one Babu Ram. Mohinder Pal son of Babu Ram was inducted as a tenant by the mortgagor Amar Nath. The application for ejectment was filed by Amar Nath against his tenant on 11th August, 1976. The ground of ejectment was non-payment of arrears of rent. Eviction order was passed by the Rent Controller on 5th February, 1979, and the said order was maintained upto the High Court. In execution of the ejectment order, possession was taken by the owner Amar Nath on 23rd September, 1980. Meanwhile on 8th December, 1977, Babu Ram mortgagee filed the suit for declaration that Mohinder Pal, his son, was the tenant under him and not under Amar Nath. In the said suit, an interim order dated 20th February, 1978, was passed by the trial Court, which reads as under :--

Present :--Counsel for the parties. Sh. Bakhtawar Singh, learned counsel for the plaintiff does not press the application for temporary injunction because defendant No 1 has agreed that he will not realise the remaining amount of rent from defendant No. 2 till the disposal of the suit and defendant No. 2 will go on depositing that rent in Court upto 15th of every month and the rent will be ultimately taken away by the plaintiff or defendant No. 1 whosoever will be held entitled to it. Defendants have agreed to abide by this compromise and signed in margin of this order. The application is disposed of in these terms. Defendant No. 2 shall deposit the rent due from him up till the January, 1978 in Court upto 30-6-1978.

Sd. B.M. MODI,

S.J.

20-2-1978

Later on, the suit filed by Babu Ram was dismissed under Order 9 Rule 3 on 24th January, 1981. Amar Nath moved an application in which it was prayed that the amount of Rs. 2,250/- lying deposited in the Court be paid to him. This application was contested on behalf of the legal representatives of Babu Ram, deceased-plaintiff. The learned Sub-Judge dismissed the said application on the ground that in the suit it was not held as to which of the parties is entitled to the amount in question and that in view of the interim order dated 20th February, 1978 (reproduced above) the applicant--Amar Nath cannot be held to be entitled to the amount in question. Dissatisfied with the same, Amar Nath has filed this petition in this Court.

No one is present on behalf of the respondents in spite of service and issuance of actual date notice.

After hearing the learned counsel for the petitioner, I am of the considered view that the whole approach of the learned Sub-Judge is illegal and misconceived. The order dated 20th February, 1978, was an interim order Since the suit was dismissed, the said order comes to an end. Admittedly, Amar Nath has taken possession of the house in dispute in execution of the ejectment order passed in his favour by the rent authorities. Thus, he being the owner as well as the landlord of the property is entitled to the said sum deposited by Mohinder Pal tenant in the said suit. Consequently, this petition succeeds and is allowed with no order as to costs. The impugned order is set aside and the application filed by Amar Nath for payment of Rs. 2,250/- lying deposited in the Court, is allowed.